State v. Carroll.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
24-JAN-2020
07:46 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
________________________________________________________________
STATE OF HAWAII, Respondent/Plaintiff-Appellee,
vs.
WILLIAM ROY CARROLL, III, Petitioner/Defendant-Appellant.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 3PC151000386)
JANUARY 24, 2020
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This case arises from the disappearance, recovery, and
repair of a bronze spear attached to the bronze King Kamehameha
I statue in Hilo, Hawaiʻi. After a jury trial in the Circuit
Court of the Third Circuit (“circuit court”),1 William Roy
Carroll, III (“Carroll”) was convicted by a jury of two counts
1
The Honorable Glenn S. Hara presided.
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of theft and one count of criminal property damage, and
sentenced to five years’ imprisonment. On appeal to the
Intermediate Court of Appeals (“ICA”), and now again on
certiorari to this court, Carroll contends the circuit court
erred by: (1) denying his challenge to two prospective jurors
for cause, thereby violating his right to peremptory challenges;
(2) denying his motion for judgment of acquittal based on
insufficiency of evidence; and (3) improperly penalizing him in
sentencing for exercising his right to a trial. The ICA
concluded Carroll’s points of error lacked merit and affirmed
the circuit court’s judgment of conviction and sentence. See
State v. Carroll, No. CAAP-XX-XXXXXXX, at 12 (App. Oct. 31,
2018) (SDO).
We hold the circuit court abused its discretion in denying
Carroll’s challenge for cause of Juror 48, which required him to
exercise one of his peremptory challenges to excuse that juror
and caused him to exhaust his peremptory challenges, thus
impairing his right to exercise a peremptory challenge on a
different juror. This error requires his conviction be vacated
and the case be remanded to the circuit court for a new trial.
We also hold, however, that because there was substantial
evidence to support Carroll’s convictions for the theft and
criminal property damage offenses, double jeopardy principles do
not preclude a retrial.
2
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Based on our rulings on the first two questions on
certiorari, we need not address Carroll’s third question on
certiorari regarding sentencing.2
We therefore vacate the ICA’s November 27, 2018 judgment on
appeal and the circuit court’s July 26, 2016 judgment of
conviction and sentence, and we remand this case to the circuit
court for further proceedings consistent with this opinion.
II. Background
A. Factual background
On September 6, 2015, the top half of the spear that was a
part of the King Kamehameha I statue located off of Kamehameha
Avenue and Bishop Street in Hilo, Hawaiʻi, was observed missing.
The spear, although a part of the statue, was no longer
physically attached to it. On September 8, 2015, during a
police investigation of the scene, the missing top portion of
the spear, wrapped in a torn half of a long-sleeved orange T-
shirt and a thick chain attached to a pole, was located in the
bushes off a trail near the statue.
B. Circuit court proceedings
1. Charges
On September 15, 2015, Carroll was charged via a felony
information and non-felony complaint with three offenses:
2
We also need not address Carroll’s assertion of error regarding the
other juror.
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(1) Count 1, theft in the second degree, in violation of Hawaiʻi
Revised Statutes (“HRS”) § 708-830(1) (2014) and
HRS § 708-831(1)(b) (2014), for obtaining or exerting
unauthorized control over a bronze spear valued at over $300
belonging to the Kamehameha Schools Alumni Association (“KSAA”);3
(2) Count 2, criminal property damage in the second degree, in
violation of HRS § 708-821(1)(b) (2014), for causing damage
3
“Theft. A person commits theft if the person . . . [o]btains or exerts
unauthorized control over property. A person obtains or exerts unauthorized
control over the property of another with intent to deprive the other of the
property.” HRS § 708-830(1).
“Theft in the second degree. (1) A person commits the offense of
theft in the second degree if the person commits theft . . . [o]f property or
services the value of which exceeds $300[.]” HRS § 708-831(1)(b).
Valuation of property or services. Whenever the value of
property or services is determinative of the class or grade
of an offense, or otherwise relevant to a prosecution, the
following shall apply:
(1) Except as otherwise specified in this section,
value means the market value of the property or services at
the time and place of the offense, or the replacement cost
if the market value of the property or services cannot be
determined.
. . . .
(3) When property or services have value but that
value cannot be ascertained pursuant to the standards set
forth above, the value shall be deemed to be an amount not
exceeding $100.
(4) When acting intentionally or knowingly with
respect to the value of property or services is required to
establish an element of an offense, the value of property
or services shall be prima facie evidence that the
defendant believed or knew the property or services to be
of that value. When acting recklessly with respect to the
value of property or services is sufficient to establish an
element of an offense, the value of the property or
services shall be prima facie evidence that the defendant
acted in reckless disregard of the value.
HRS § 708-801 (2014).
4
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exceeding $1,500 to the King Kamehameha I statue, also belonging
to the KSAA;4 and (3) Count 3, theft in the third degree, in
violation of HRS § 708-830(1) and HRS § 708-832(1)(a) (2014) for
obtaining or exerting unauthorized control of a four-foot pipe
and forty-foot chain valued at over $100 belonging to Bayfront
Motors Incorporated (“Bayfront Motors”).5
2. Pre-trial hearing regarding State’s plea offer
At a May 4, 2016 hearing regarding other matters, the
circuit court indicated it would be conducting what it called a
“Frye hearing.” The circuit court was apparently referring to
Missouri v. Frye, 566 U.S. 134 (2012), in which the United
States Supreme Court held that, “as a general rule, defense
counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be
favorable to the accused.” Frye, 566 U.S. at 145.6 The State
4
“Criminal property damage in the second degree. (1) A person commits
the offense of criminal property damage in the second degree if by means
other than fire: . . . [t]he person intentionally or knowingly damages the
property of another, without the other’s consent, in an amount exceeding
$1,500[.]” HRS § 708-821(1)(b).
5
“Theft in the third degree. (1) A person commits the offense of theft
in the third degree if the person commits theft . . . [o]f property or
services the value of which exceeds $100[.]” HRS § 708-832(1)(a).
6
The Court further stated:
The prosecution and the trial courts may adopt some
measures to help ensure against late, frivolous, or
fabricated claims after a later, less advantageous plea
offer has been accepted or after a trial leading to
conviction with resulting harsh consequences. First, the
fact of a formal offer means that its terms and its
(continued. . .)
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indicated it was offering to agree to a sentence of probation
and also that any jail term would be equal to time served in
exchange for Carroll’s guilty or no contest plea as to Count 3
and either Count 1 or Count 2. The State also agreed to take no
position if Carroll requested a deferral. The circuit court
made clear that if Carroll accepted the plea offer, it would
sentence Carroll to probation stating, “[a]s I see it, the real
big plus is that you would be avoiding any exposure to prison.”
(. . .continued)
processing can be documented so that what took place in the
negotiation process becomes more clear if some later
inquiry turns on the conduct of earlier pretrial
negotiations. Second, States may elect to follow rules that
all offers must be in writing, again to ensure against
later misunderstandings or fabricated charges. See N.J. Ct.
Rule 3:9–1(b) (2012) (“Any plea offer to be made by the
prosecutor shall be in writing and forwarded to the
defendant's attorney”). Third, formal offers can be made
part of the record at any subsequent plea proceeding or
before a trial on the merits, all to ensure that a
defendant has been fully advised before those further
proceedings commence. At least one State often follows a
similar procedure before trial.
Frye, 566 U.S. at 146-47 (citations omitted). Thus, the Court discussed
possible measures to “help ensure against late, frivolous, or fabricated
claims” brought by defendants regarding the existence of plea offers for
lesser sentences than those eventually imposed. As of the Court’s 2012
opinion in Frye, it appears that perhaps only one state was conducting on-
the-record discussions regarding plea offers. Although Hawaiʻi Rules of Penal
Procedure (“HRPP”) Rule 11(f)(1) (2014) allows trial courts to participate in
plea discussions, HRPP Rule 11(f)(2) does not require a plea offer to be
communicated to a trial court unless a defendant accepts the State’s offer,
and there are other methods of memorializing that a plea offer was conveyed
to a defendant but rejected without involving the trial court. The most
common method may be a defense attorney’s notation in the file. Although we
need not address the merits of Carroll’s sentencing issue on certiorari, we
do note that detailed on-the-record inquiries by a trial court regarding the
terms of a probation plea offer, with indications that the trial court would
follow the offer and that refusing the offer could result in a prison
sentence, can, as in this case, lead to questions regarding whether the trial
court penalized a defendant for exercising trial rights.
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Carroll declined the plea offer as supplemented to by the court
and proceeded to trial.
3. Jury selection
Jury selection began on May 9, 2016. After the circuit
court read the charges against Carroll during voir dire, it
asked the jurors whether they7 had any knowledge or information
about the case from any source, including any media, friends, or
any other sources. Several prospective jurors indicated they
had heard of the case through other sources.
Juror number 48 (“Juror 48”)8 responded she had been exposed
to information regarding the case from the Hawaii Tribune-Herald
newspaper. She also stated she had heard comments made by her
daughter and son-in-law and her three grandchildren who attended
a Hawaiian language immersion school “who were impacted by” the
case, and that she “may have heard something from” “another
child who’s a Hawaiian activist.” She could not recall who said
what. She stated her recollection regarding what she might have
read was “[a]bout where the items were found” and “the condition
of what -- where they found him.”
She indicated she was raising the issue because she “just
wanted everyone to know that I have the newspaper reports and I
7
“They, them, and their” are sometimes used as singular pronouns when
(1) the gender identity of a person referred to is unknown or immaterial; or
(2) those are the pronouns of a specific person.
8
After preliminary excusals, Juror 48 became juror number 12.
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may have heard something somewhere along the line. What, I
couldn’t be specific just because my children are very involved
in Hawaiian activities and the statue is important to them.”
Juror 48 explained that she recalled reading where the items
were found, but that she could not discern “what else was added
. . . by [her] children” who were “very upset that the statue
was desecrated,” “[t]hat things were missing,” “[t]hat what was
done to the statue was not appropriate,” and that “[s]omething
should be done.”
The circuit court stated that “[not] too many people would
disagree with those sentiments,” and asked:
THE COURT: Despite what you, um, may have, uh, read about
and you might have had some reactions, uh, from your own
family about, uh, this incident do you think you can set
that aside and in essence and, um, presume Mr. Carroll, the
defendant, here to be innocent until he is proven guilty
beyond a reasonable doubt by the evidence in this case?
[JUROR 48]: I would certainly do my best to do that.
However, I do come from a, um, my husband and others were
very much, uh, of the opinion that if it does get to court
there’s a lot of -- got to be a lot of proof somewhere.
That that’s the way it is.
(Emphasis added.)
Juror 48 went on to state that she “would definitely try
[her] best” to find Carroll not guilty if the State did not
produce sufficient evidence to overcome the presumption of
innocence. But, after further colloquy with the circuit court,
Juror 48 confirmed she “presum[ed] [Carroll] guilty until he
[could] prove his innocence” with “pretty good evidence”:
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THE COURT: Okay. If you made a conscientious effort to do
that what would be your confidence level or your -- your,
um, evaluation of your abilities to do that successfully?
[JUROR 48]: If, uh, the evidence points that he was not
the one then I would be able to say that, um, I would be
able to overcome but I’ve -- I’ve heard --
THE COURT: Okay.
[JUROR 48]: -- but again it would have to be pretty good
evidence.
THE COURT: Okay. But, okay, in essence what you just told
me is you’re presuming that the evidence -- you’re
presuming him guilty until he can prove his innocence. You
understand?
[JUROR 48]: I understand, but I’m -- I’m saying --
THE COURT: But that’s what you’re --
[JUROR 48]: -- yes.
THE COURT: -- that’s what your orientation is right now?
[JUROR 48]: Right now.
(Emphases added.) Juror 48 then stated, however, that if she
were selected to sit on the jury, she would be able to put aside
the feelings of her family members about the incident when
making her decision because she would follow the circuit court’s
instructions. She also stated:
So I really I would try to go by evidence. I’ve watched a
lot of, uh, my husband very much loved all the court cases
he could possibly watch. Well, he was bedridden and, uh,
so I’ve seen a lot of those things which I know are not
true, but I know sometimes thing do not come out the way it
sounds like from the first.
Questioning by the circuit court of Juror 48 continued as
follows:
THE COURT: Okay. [Juror 48], you know, I need to clarify
certain things because I’m getting some very conflicting
answers from you, and maybe it’s because you’re a little
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nervous and because you may not be understanding some of
the questions so let me try again here.
First of all whatever it is, you know, in terms of
any kind of bias or feelings or -- or, uh, whatever you may
have with respect, um, to, uh, what happened in this case
about the statue, your – your kids’ reaction to it and
everything, you know, I can’t unring the bill [sic].
And we’re all human. We’re gonna have biases and
prejudice we pick up throughout our entire lives. Uh, I
have my own but, uh, and I’m sure the prosecutors have
their own.
But when you become a juror and/or you become a judge
like me, you know, you have to make a conscientious effort
to identify those biases to say what it is that might
affect your judgment in that particular case and tell
yourself conscientiously, “I can’t let those biases
interfere with being fair and impartial. That cannot be
the basis of my decision.”
In other words I won’t change you. I won’t change
your biases. I won’t change your feelings, but once you
identify what those are as to whether or not they affect
your decision in a case as a juror you have to set ‘em
aside. You think you can do that?
[JUROR 48]: Yes.
THE COURT: Okay. The other thing I think I need, uh, some
assurance of is that also as I indicated earlier jury and
jury verdict, um, have to be based on the evidence
presented in court.
So when we have the possibility of a juror having
information from outside the court they will have to engage
in almost a very similar type of exercise in terms of
saying, “Well, I cannot forget what I know but I can
disregard it. I can set it aside,” just like I’m required.
I know a lot of things but I have to say I can’t consider
that when I have a trial and I have to make a decision.
Would you be able to do that as a judge of the facts
in this case? In other words render your verdict only on
the evidence that’s presented in court and not consider --
I’m not saying forget but not consider whatever kind of
information you might have gotten from your family, from
the newspapers in rendering a verdict. You can do that?
[JUROR 48]: Yes.
THE COURT: So if those thoughts came into your mind during
a trial you would -- and this is why we going over what it
is that you might recall -- you have to say, “Oh, I can’t
consider that,” and just push it aside. You may not forget
it but just push it aside and not use that or discuss that
or bring it up in deliberations during, um, deliberations
as a juror. Do you think you can do that?
[JUROR 48]: Yes.
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THE COURT: As to all of these things that I ask you
whether or not you’d be able to do as a juror to what
degree of certainty or confidence do you think you’d be
able to be successful if you conscientiously tried to, um,
do these things?
[JUROR 48]: 90 percent.
THE COURT: So you’re fairly -- very, very confident?
[JUROR 48]: Yes.
THE COURT: Okay. Thank you. Any further questions?
[DEPUTY PROSECUTING ATTORNEY]: Nothing from the State.
THE COURT: Okay. [DEFENSE ATTORNEY]?
[DEFENSE ATTORNEY]: Just one further question, ma’am.
THE COURT: Go ahead.
[DEFENSE ATTORNEY]: You had said that, um, when the --
just before the Judge asked you so you -- you were stating
something that sounded like you were presuming he was
guilty and the evidence would have to be good. Is that
extra 10 percent that you -- in your certainty level, is
there a bit of if that you would want Mr. Carroll to
somehow prove to you that he’s not the one or prove to you
that he’s innocent?
[JUROR 48]: I guess my feeling on that has to be on the
fact that, um, I have a lot of faith in the police and that
what they do and, um, what they put together and who they
arrest. That would be the 10 percent.
[DEFENSE ATTORNEY]: Okay, and so because of that faith and
belief, um, there is gonna always be a part of you that
you’ll want Mr. Carroll or any defendant that made it to a
trial level to have to prove to you that they’re not, um,
the one? That -- that somehow the police got it wrong or
something went wrong. You would want a little bit of proof
of that?
[JUROR 48]: Uh, I would base my opinion on what proof
there is.
[DEFENSE ATTORNEY]: Mmm-hmm.
[JUROR 48]: Um, I guess also I would feel that if there
was proof it’s got to be somewhat sustainable or why would
it be proved?
Carroll then challenged Juror 48 for cause, arguing:
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[S]he never let go of her idea that even if it’s 10 percent
it’s still 10 percent burden of proof being placed upon Mr.
Carroll to somehow prove his innocence.
. . . .
I think that she will not be able to give Mr. Carroll
the full presumption of innocence nor will she be able to
give the State the full burden of proof they have.
The circuit court denied Carroll’s challenge, stating that
Carroll had misconstrued Juror 48’s answers:
[W]hat we’re looking here for in terms of this voir
dire was basically what she would do with the knowledge she
might have had about the case and whether or not she might
have had some inclination about Mr. Carroll’s guilt or
innocence and whether she could put that aside.
The 90 percent was her confidence level that if she
conscientiously tried to do that she would be able to
succeed. That’s a fairly high degree of confidence that I
think the Court would be willing to accept under the
circumstances where, you know, you have somebody who has
this task of -- of sorting out information and being able
to decide what he can use, what they can’t use. It’s not a
10 percent of shifting burden. I think that’s a
misconception.
The other thing is that I will be going over in other
voir dire things like police testimony. I’ll be going over
evaluation of testimony, also the concept of proof beyond a
reasonable doubt and what is a reasonable doubt.
And I think all of those things will probably wash,
you know, come out in the wash with [Juror 48], and you’ll
also have another chance each of you to voir dire her. So
at this point I’m just going to leave her on because I’m
satisfied with the answers with respect to the limited voir
dire that we had. Okay.
Additional voir dire was conducted on May 10, 2016. In
response to the circuit court’s questioning, Juror 48 indicated
that Hawaiʻi Police Department Criminal Investigation Section
Lieutenant Gregory Esteban, who was later called as a witness
and testified he assisted in the investigation and found the
missing top portion of the spear in the bushes, was a friend of
her husband’s through a community watch program in which her
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husband was involved, but that she could evaluate his testimony
like any other witness. In response to the circuit court’s
questions with respect to whether any of the prospective jurors
had relatives or close friends employed by a law enforcement
agency, Juror 48 responded that her son had been a corrections
officer on Maui for about twelve or fifteen years, but that this
would not affect her ability to evaluate the testimony of law
enforcements officers if they came to testify. In response to
the deputy prosecuting attorney’s questioning, Juror 48
initially responded that she thought direct evidence had a
little bit more weight than circumstantial evidence, but in
response to a follow-up question regarding whether, if the
circuit court instructed the jurors to give direct and
circumstantial evidence equal weight, she would be able to
follow its instruction, Juror 48 responded in the affirmative.
After this additional voir dire, Carroll renewed his
challenge for cause of Juror 48 based on her statements the day
before. Carroll argued Juror 48 “had made statements that Mr.
Carroll would have to provide some evidence in order to sway her
that he is innocent, and even towards the end of voir dire, she
had stated that her 10 percent uncertainty was based on the fact
that she still would want some evidence from Mr. Carroll.”
The circuit court again denied the challenge for cause of
Juror 48 based on: (1) the reasons it had stated the day before
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regarding the “10 percent”; (2) Juror 48’s statements during
further voir dire that “she would listen to both sides and she
could be fair and impartial”; and (3) additional voir dire by
both the State and the defense indicating that Juror 48 “would
be applying the laws with respect to presumption of innocence
and the burden of proof required.” The circuit court stated
that Juror 48 “answered basically all of the questions like all
of the rest of the jurors, that they would apply the law that
would be applicable.”
Carroll exhausted his peremptory challenges, and had to use
two of his peremptory challenges to dismiss another challenged
juror and Juror 48. Had Juror 48 been excused for cause,
Carroll would have used the peremptory challenge exercised on
Juror 48 to excuse another juror. Defense counsel stated:
Um, for the record I would be requesting two more
peremptory challenges. That would be based on the fact that
we had asked for [] Juror No. [35] earlier, and [] Juror
No. [48], we had challenged them being seated. We would
have used the two extra peremptory challenges to get rid of
[two other jurors].
The circuit court denied the request for additional peremptory
challenges.9
9
As noted, the other challenged juror was juror number 35 (later
identified as juror number 7). Because, as discussed below, Carroll
exhausted his peremptory challenges and was foreclosed from peremptorily
challenging at least one of two additional prospective jurors he had wanted
to excuse, his right to exercise a peremptory challenge on another juror was
based on the circuit court’s failure to excuse Juror 48 for cause. We
therefore need not address Carroll’s assertion that juror number 35 should
have also been excused for cause.
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4. Trial evidence relevant to issues on certiorari
On certiorari, Carroll does not contest evidence
identifying him as the perpetrator of the acts.10 Rather,
Carroll contests whether there was sufficient evidence regarding
the value of the property allegedly taken. Specifically,
Carroll alleges there was insufficient evidence that the top
half of the statue’s spear exceeded $300 in value (Count 1) and
that the chain and pole belonging to Bayfront Motors exceeded
$100 in value (Count 3). Carroll also contests whether there
was sufficient evidence that the value of the damage to the
statue exceeded $1,500 (Count 2).11
With respect to Counts 1 and 2 regarding the spear and
statue, an officer of the East Hawaii Region Mamalahoe Chapter
of the KSAA (“KSAA officer”) testified that the King Kamehameha
I statue had been given to the KSAA by the Princeville
Corporation on Kauaʻi in 1996. The statue was not mass produced,
and had been cast in bronze in Italy with some gold leaf. The
Princeville Corporation initially planned to install the statue
10
The trial evidence included, in sum, a surveillance video recorded by
Bayfront Motors, which showed a man — with the same haircut as Carroll,
dressed in the same manner as Carroll on September 5 and 6, 2015, and who
walked with the same gait as Carroll — had walked away from Bayfront Motors
with the pole and chain. Identification of Carroll as the perpetrator is not
raised as an issue on certiorari.
11
Although for sentencing purposes, Count 2, the criminal property damage
charge regarding the statue, was merged into Count 1, the theft charge
regarding the spear, if only the conviction on Count 1 was vacated, it is
possible that Carroll could be instead be subject to sentencing on Count 2.
We must therefore address both counts.
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on one of its Kauaʻi developments, but after public objection,12
the Princeville Corporation gave it to the KSAA to have the
statue installed in Hilo.
In 1996, the KSAA officer had been a member of the steering
committee created to seek grants to pay for the installation of
the statue. He had also served as the general contractor for
the statue’s installation. As of the date of trial, the KSAA
officer remained a licensed general contractor. Additionally,
he had continued serving as a member of the steering committee,
as the permit for the statue tasked KSAA with its continued
maintenance. For example, the statue had been restored in early
2000. As the only remaining member of the original steering
committee, the KSAA officer was the custodian of all records
pertaining to the acquisition of the statue.
The KSAA officer was asked by the State to render opinions
as an estimator and general contractor, as he had determined the
fair market value of contracting work or projects on numerous
occasions. During preliminary questioning by defense counsel
regarding his qualifications to render such opinions, the KSAA
officer acknowledged he had no experience in appraising fine
art, sculptures, or statues; that he did not deal in sculptures
or statues; that he did not have experience in sculpting or
12
The objection was based on the fact that King Kamehameha I had never
conquered Kauaʻi.
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creating statues; that he was not familiar with the foundry work
to create a statue; and that he was not aware of the exact metal
composition of the King Kamehameha I statue.
The KSAA officer testified the stated value of the statue
at the time of the 1996 gift was $80,000. He was permitted to
testify as to his opinions, and based on the material
composition of the spear and the portion of the entire statue it
constituted, he estimated the value of the taken top half of the
spear was about $2,500. The KSAA officer also opined the repair
cost for the spear would have been about $2,500 based on what he
saw of the spear, the damage, and what it would take to
reconnect the top half to the bottom half.
The KSAA officer also testified it would have cost $3,500
to repair other damage to the statue’s chest and legs, based on
“what [he] saw as the type of restoration work that would be
needed[,] . . . and based on what [his] recollection of the
first time that [the KSAA] had the statue restored back in early
2000[.]” That restoration project had taken several weeks. He
stated, “[W]e had to build a platform around the statue for the
person to attend to each portion of the statue. Based on what I
saw back then I just, you know, figured out the amount of
manpower -- man hours would take. And I just guessed at what
the material costs would have been.”
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More specifically, the KSAA officer testified that to
reattach the two pieces of the spear, he had taken the pieces to
another person, who attached a series of pins to the spear in
December 2015 and did not charge for his services. He also
indicated that before the entire spear was reinstalled, the
bottom half of the spear had to be removed from the statue so
that the recovered top half could be reattached. As the statue
was fourteen feet tall, a manlift and lowbed had been used to
lift the bottom half of the spear out through the statue’s
outreached hand. The labor to perform these services, as well
as use of the necessary equipment, had been provided by the KSAA
officer’s family company; the KSAA officer had previously worked
as a construction representative for his family company.
Based on his training and experience as a general
contractor and estimator, the KSAA officer estimated that such
services and labor, coupled with expenses to return all of the
equipment, would have cost about $1,000. Similarly, to
reinstall the repaired spear, a crane or similar equipment had
been required. According to the KSAA officer, use of a crane
would have cost $1,000 and the requisite labor would have raised
the total cost to $1,500. The KSAA had not needed to pay for
these services because use of the equipment had been donated and
all labor had been performed by volunteers.
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With respect to Count 3 charging theft in the third degree
of the chain and pole “the value of which exceeds $100,” a
manager from Bayfront Motors testified. The chain and pole had
been placed in a planter box in front of the property. The
manager testified he had purchased the chain and pole in either
2010 or 2011 from Home Depot for a total cost of approximately
$135; the pole was purchased for “[r]oughly $15,” and the chain
was “[r]oughly $3 a foot.”
After the State concluded presenting its evidence, Carroll
moved for a judgment of acquittal, arguing the State failed to
meet its burden of proving the value of the spear or the pole
and chain, and the cost to repair the statue. The circuit court
denied the motion for judgment of acquittal as to all three
counts.
After the State’s case-in-chief, the defense did not call
any witnesses or present any additional evidence.
5. Conviction
On May 20, 2016, the jury found Carroll guilty as charged
for all three counts. In a special interrogatory, the jury
found the State did not prove beyond a reasonable doubt that
Counts 1 and 2 were not part of a continuing and uninterrupted
course of conduct and that Carroll did not have separate and
distinct intents. Based on the special interrogatory and
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merger, the State elected to go forward on Count 1 for
sentencing.13
6. Post-verdict motion for new trial
Before sentencing, Carroll filed a motion for new trial on
June 3, 2016. He asserted he should not have been required to
use two of his peremptory challenges to dismiss two jurors when
they should have been dismissed for cause. He alternatively
argued that he should have been granted two additional
peremptory challenges. The State opposed Carroll’s motion,
arguing the circuit court had properly denied Carroll’s
challenges for cause of Juror 48 and the other juror, as the
circuit court had engaged in extensive colloquies with each and
was satisfied with their responses. The circuit court denied
the motion for new trial.
7. Sentencing
Carroll was sentenced on July 26, 2016. At the sentencing
hearing, defense counsel indicated Carroll maintained his
innocence. When the circuit court asked whether Carroll wished
to make a statement before sentencing, Carroll answered in the
affirmative. He stated that he respected the circuit court,
that he was willing to abide by any terms of probation if
13
Count 1, theft in the second degree, and Count 2, criminal property
damage in the second degree, are both Class C felonies, punishable with up to
five years imprisonment. HRS §§ 708-821(2), 708-831(2), and 706-660(1)(b)
(2014). Count 3, theft in the third degree, is a misdemeanor, punishable
with up to one year imprisonment. HRS §§ 708-832(2) and 706-663 (2014).
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granted, that it had been difficult for him to be separated from
his daughter since being incarcerated, and that he had missed a
trip with his family.
Addressing the HRS § 706-606 sentencing factors,14 the
circuit court relied on the pre-sentence report prepared by a
judiciary probation officer, and stated in part:
At one time you told a security officer at the
welfare office, “Yeah, I’m the guy that did it,” and when
you were interviewed by the probation officer you deny
taking the spear or having anything to do with the offenses
charged here, and that’s in the face of clear evidence that
was produced at trial. Evidence which indicated that you
were the person dragging the chain that was taken from
Bayview, uh, Bayfront Motors, and they’re [sic] videos that
I think clearly showed some very identifying
characteristics in terms of your general dress and more
importantly I think there was one brief but clear shot of
your hairdo which was very unique at that time.
Other evidence includes that the chain that was
taken, the spear that was taken and an orange T-shirt was
found all wrapped together by the police, and there was
evidence to indicate that you had an orange shirt -- T-
shirt a few hours before where the police observed you at a
14
Factors to be considered in imposing a sentence. The
court, in determining the particular sentence to be
imposed, shall consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense,
to promote respect for law, and to provide just punishment
for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes
of the defendant; and
(d) To provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct.
HRS § 706-606 (2014).
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bar where I think an acquaintance got injured and you tried
to help that person.
Now, all of this evidence I think when you look at it
separate and by itself would probably not have been enough
to convict you of the offenses but when taken together I
think it paints a very clear picture that you had knowledge
of what was being done or what had been done, and there was
evidence that tied you in beyond your own statements. Your
T-shirt. And the chain. And the video.
So again even in the face of this kind of evidence
you tell the probation officer, “I didn’t have anything to
do with it,” it really indicates to me that you do not have
the ability at this time to be upfront and truthful.
The reason I’m pointing these things out is among
other things that I need to consider are also
considerations in, as [the deputy prosecuting attorney]
pointed out, Section 706-621, and these are factors to be
considered, uh, to consider in imposing a term of
probation.
And one of them I think is whether or not you can be
rehabilitated on probation. To be successful on probation
requires I think two very important commitments on your
part and conduct on your part. One is to comply with the
terms and conditions of probation.
Given your track record and your disregard for the
law -- and that’s why I pointed it out earlier -- I believe
that there will be serious violations of the terms of your
probation if you were granted probation because of your
lack of ability to comply with the terms, uh, with the law
of this community. How are you gonna comply with the terms
of probation?
Second was also very important is that you be
truthful with your probation officer and the Court. Part
of probation is trying to rehabilitate you to provide
services and help, but if you’re not truthful with the
Court or your probation officer how do we know what help
you need?
Carroll was sentenced to five years imprisonment.15 The
circuit court denied Carroll’s request for a stay pending
appeal.
C. Appeal to the ICA and and certiorari application
In his appeal to the ICA, Carroll presented three points of
error:
15
A five-year term of imprisonment was imposed for Count 1. A one-year
term of imprisonment was imposed for Count 3 to run concurrently with the
five-year term.
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A. Carroll’s challenges to jurors for cause were
erroneously denied and Carroll’s right of peremptory
challenges was violated.
. . . .
B. The trial court erroneously denied Carroll’s Motion
for Judgment of Acquittal.
. . . .
C. The trial court’s sentence improperly
penalized/punished Carroll for exercising his right to
trial.
The ICA rejected the challenges.
As to the first point of error, the ICA concluded, inter
alia, the circuit court did not abuse its discretion in denying
Carroll’s challenges for cause of Juror 48 and the other juror.
Carroll, SDO at 7. The ICA observed that the media coverage
referred to by both jurors was nearly a year old and consisted
of mostly factual, non-prejudicial information, such as where
the spear had been recovered, its condition, and “mention that a
homeless man may have been responsible for the incident.”
Carroll, SDO at 6. According to the ICA, such coverage was not
a “barrage of inflammatory publicity immediately prior to trial
amounting to a huge . . . wave of public passion,” and therefore
did not rise to the level of presumed prejudice, quoting State
v. Keohokapu, 127 Hawaiʻi 91, 103, 276 P.3d 660, 672 (2012).
Carroll, SDO at 6-7 (ellipsis in original). The ICA indicated
Juror 48’s disclosure of her prior conversations with her
children indicating that they were very upset that the statue
had been damaged was not different from how most members of the
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public must have felt about the incident. Carroll, SDO at 7.
The ICA ruled that, therefore, none of the outside influences on
Juror 48 rose to the level of presumed prejudice. Id.
As to the second point of error, the ICA ruled that
although the KSAA officer was not qualified as an expert in the
field of fine arts or sculptures, expert testimony is not
required to establish the value of stolen property. Carroll,
SDO at 9. The ICA also ruled that evidence of the cost of
reasonable repairs is an appropriate means to establish the
amount of damages as an element of the crime of criminal
property damage. Id. The ICA therefore ruled the KSAA
officer’s testimony was sufficient to support Carroll’s
conviction on Counts 1 and 2. Id. Further, as to Count 3, the
ICA ruled the testimony of the Bayfront Motor’s manager
regarding the purchase price of the stolen pipe and chain in
2010 or 2011 was adequate evidence for the jury to determine
whether the stolen property’s value exceeded $100 at the time of
the offense. Carroll, SDO at 10.
As to the third point of error, the ICA ruled the circuit
court properly considered the HRS § 706-606 sentencing factors,
arguments by counsel, and the nature of the offense before
determining Carroll’s five-year imprisonment was an appropriate
sentence. Carroll, SDO at 11. The ICA indicated the circuit
court’s pre-trial discussion with Carroll regarding the possible
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prison term for rejecting the State’s plea agreement was
permissible. Id. The ICA ruled the record did not show the
circuit court abused its discretion in sentencing Carroll. Id.
Carroll’s application for a writ of certiorari presents the
same three issues he had presented to the ICA.
III. Standards of Review
A. Challenge to juror for cause
A trial court’s decision on a challenge for cause of
a juror is reviewed for an abuse of discretion. An abuse
of discretion occurs when the trial court “exceeds the
bounds of reason or disregards rules or principles of law
or practice to the substantial detriment of a party
litigant.”
State v. Iuli, 101 Hawaiʻi 196, 203, 65 P.3d 143, 150 (2003)
(citations omitted).
B. Motion for judgment of acquittal
The standard to be applied by the trial court in
ruling upon a motion for a judgment of acquittal is
whether, upon the evidence viewed in the light most
favorable to the prosecution and in full recognition of the
province of the [trier of fact], a reasonable mind might
fairly conclude guilt beyond a reasonable doubt. An
appellate court employs the same standard of review.
State v. Keawe, 107 Hawaiʻi 1, 4, 108 P.3d 304, 307 (2005)
(alteration in original) (citations omitted).
C. Sentencing
In general, “[t]he applicable standard of review in
sentencing matters is whether the court committed a plain and
manifest abuse of discretion in its decision.” State v. Putnam,
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93 Hawaiʻi 362, 372, 3 P.3d 1239, 1249 (2000) (citations
omitted).
IV. Discussion
A. The ICA erred in ruling the circuit court did not abuse its
discretion in denying Carroll’s challenge for cause of
Juror 48, and Carroll’s right to exercise a peremptory
challenge was impaired.
The first issue raised on certiorari is whether the ICA
erred in “holding Carroll’s challenges to jurors for cause were
not erroneously denied and Carroll’s right of peremptory
challenges was not violated.”16 For the reasons discussed below,
the first issue regarding the circuit court’s failure to dismiss
Juror 48 for cause has merit, and it requires that Carroll’s
conviction be vacated and the case remanded to the circuit court
for further proceedings consistent with this opinion.
Carroll contends the circuit court should have granted his
challenge to Juror 48 for cause and that he should not have had
to use a peremptory challenge to dismiss Juror 48. The ICA
appears to have concluded that based on our existing case law,
the circuit court adequately “rehabilitated” Juror 48. For the
following reasons, the ICA erred in concluding the circuit court
did not abuse its discretion in denying Carroll’s challenge to
Juror 48 for cause.
16
Again, we need not address the challenge to juror number 35. See supra
notes 2 and 8.
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“[T]he right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial . . . jurors.”
State v. Graham, 70 Haw. 627, 633, 780 P.2d 1103, 1107 (1989)
(alteration in original) (quoting Irvin v. Dowd, 366 U.S. 717,
722 (1961)). “The theory of the law is that a juror who has
formed an opinion cannot be impartial.” Reynolds v. United
States, 98 U.S. 145, 155 (1878). However, a rule “that the mere
existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality [is] an
impossible standard.” Graham, 70 Haw at 633, 780 P.2d at 1107
(quoting Irvin, 366 U.S. at 723). “The prevailing rule thus
allows a person with preconceived notions about a case to serve
as a juror if [they] ‘can lay aside [their] impression or
opinion and render a verdict based on the evidence presented in
court.’” Id. (quoting Irvin, 366 U.S. at 723).
In Graham, the defendant challenged a juror who had made
“ambiguous and at times contradictory responses [] to queries
regarding her willingness to lay aside impressions or opinions
formed from earlier media accounts.” 70 Haw. at 634, 780 P.2d
at 1108. This court noted that such contradictory responses are
not unusual during voir dire examination, “particularly in a
highly publicized criminal case.” Id. (citation omitted). This
court noted the juror’s “opinions could hardly be characterized
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as ‘strong and deep impressions which close the mind against the
testimony that may be offered in opposition to them.’” 70 Haw.
at 634-35, 780 P.2d at 1108 (citation omitted).
In this case, the ICA evaluated Carroll’s challenge to
Juror 48 based only on standards applicable to jurors who have
been exposed to pretrial publicity. However, Juror 48’s
exposure to the case was not limited to pretrial publicity,
unlike the other prospective jurors. Rather, Carroll challenged
Juror 48 for cause based on the expressed and strong views of
her family members regarding the case.
In Iuli, we addressed a defendant’s challenge for cause of
a juror whose father and uncles were police officers, and whose
brother had just retired as a police chief. 101 Hawaiʻi at 200,
65 P.3d at 147. We noted that “when a juror is challenged on
grounds that he has formed an opinion and cannot be impartial,
the test is whether the nature and strength of the opinion are
such as in law necessarily raise the presumption of partiality.”
101 Hawaiʻi at 204, 65 P.3d at 204 (internal brackets, quotation
marks, and ellipses omitted) (citing Graham, 70 Haw. at 633, 780
P.2d at 1107) (quoting Reynolds, 98 U.S. at 156).
Juror 48’s responses and comments indicate the nature and
strength of her opinions were “such as in law necessarily raise
the presumption of partiality.” Juror 48’s daughter and son-in-
law worked at a Hawaiian immersion school, which her three
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grandchildren attended. She had “another child who’s a Hawaiian
activist.” She indicated she had heard comments made by family
members because her “children are very involved in Hawaiian
activities and the statue is important to them.” Juror 48 also
explained that her children were very upset that the statue was
“desecrated” and stated that “[s]omething should be done” as a
result.
Then, after the circuit court’s statement that “[not] too
many people would disagree with those sentiments,” in response
to the circuit court’s inquiry as to whether Juror 48 could “set
that aside” and “presume [Carroll] innocent until he is proven
guilty beyond a reasonable doubt,” Juror 48 stated that although
she “would certainly do her best,” it was the opinion of her
“husband and others” that “if it does get to court there’s a lot
of -- got to be a lot of proof somewhere.” When the circuit
court again asked if Juror 48 could presume Carroll’s innocence,
Juror 48 suggested she could not, responding that she understood
she was saying she presumed Carroll guilty until he could prove
his innocence.
Juror 48’s responses and comments clearly raised the
presumption of partiality, which was compounded by her
statements asserting that Carroll needed to present “pretty good
evidence” to prove his innocence. Thus, Juror 48 expressed
serious doubts about her ability to be fair and impartial.
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In Iuli, we indicated that if a prospective juror expresses
serious doubts about their ability to be fair and impartial,
they must be excused for cause, unless they ultimately assure
the trial court that they will base their decision solely upon
the evidence. 101 Hawaiʻi at 205, 65 P.3d at 152 (citing State
v. Ibanez, 31 P.3d 830, 832 (Ariz. Ct. App. 2001)). After
serious doubts were raised about Juror 48’s ability to be fair
and impartial, the circuit court engaged in lengthy explanations
of the need for jurors to set aside biases, that verdicts have
to be based on the evidence presented in court, and of the need
to set aside information she had gotten from newspapers or her
family. Juror 48 only gave mono-syllabic “yes” responses to
each of the circuit court’s lengthy explanations. When the
circuit court then asked for her to give a percentage of her
“degree of certainty or confidence” as to her ability to “do
these things,”17 Juror 48 indicated “90 percent” confidence.
Yet, regarding the “90 percent,” in response to further voir
dire questioning by defense counsel, Juror 48 stated she has “a
lot of faith in the police,” and that she would “feel that if
there was proof it’s got to be somewhat sustainable or why would
it be proved?”
17
It is unclear whether “these things” referred only to the need to set
aside information Juror 48 received from newspapers or her family, or also to
the other topics within the circuit court’s lengthy explanations that drew
her “yes” responses.
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As held in Griffin v. Commonwealth, 454 S.E.2d 363 (Va.
Ct. App. 1995), a trial judge may not rehabilitate an obviously
biased juror by long, complex, and leading questions, and a
conviction in which such a juror participates must be set aside
due to manifest error. Also, trial and appellate courts “are
not bound by a prospective juror’s statement that [they] will be
fair and impartial.” State v. Kauhi, 86 Hawaiʻi 195, 199, 948
P.2d 1036, 1040 (1997). “Common sense and human experience tell
us that anyone in [Juror 48’s] position,” with children who were
deeply affected and upset by the crime of which Carrol was
accused, “would be reluctant to return a verdict [of acquittal],
no matter how great her belief that she could set aside her
personal feelings.” Walls v. Kim, 549 S.E.2d 797, 800 (Ga. Ct.
App. 2002).
In its attempt to rehabilitate Juror 48, the circuit court
asked numerous leading questions. Mere assent to leading
inquiries “is not enough to rehabilitate a prospective juror who
has initially demonstrated a prejudice or partial
predisposition.” Griffin, 454 S.E.2d at 366 (citation omitted).
Leading questions employed to rehabilitate a prospective juror
after an unequivocal demonstration of bias are generally
insufficient, as leading questions, particularly from the court,
may often lead to unreliable answers. This is because “[w]hen
asked by the court, a suggestive question [may produce] an even
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more unreliable response,” because of “[a] juror's desire to
‘say the right thing’ or to please the authoritative figure of
the judge.” McGill v. Commonwealth, 391 S.E.2d 597, 600 (Va.
Ct. App. 1990). Thus, in general, a juror should, in their own
words, clarify or modify a declaration of bias in a fashion
which demonstrates that any bias can be set aside. See Scott v.
Commonwealth, 708 S.E.2d 440 (Va. Ct. App. 2011).18
Juror 48’s “presumption of partiality” was therefore not
ultimately rectified based on her “yes” responses to the many
leading questions asked by the circuit court. Juror 48 did not,
in her own words, clarify or modify her earlier indicated bias
in a fashion demonstrating that her bias could be set aside.
Finally,
[a] trial judge should err on the side of caution by
dismissing, rather than trying to rehabilitate, biased
jurors because, in reality, the judge is the only person in
a courtroom whose . . . primary duty . . . is to ensure the
selection of a fair and impartial jury.
Walls, 549 S.E.2d at 799. In this case, rather than err on the
side of caution, the circuit court engaged in extensive
explanations in an attempt to rehabilitate Juror 48. “The trial
judge, in seeking to balance the parties’ competing interests,
18
We recognize that it may be necessary for the trial court, during voir
dire, to explain concepts such as the presumption of innocence to prospective
jurors, who are often unfamiliar with legal processes and terms, and confirm
that prospective jurors understand what those concepts mean. Nothing in this
opinion should be read to foreclose that practice. We only caution that
attempting to rehabilitate a juror who has expressed doubts about the ability
to be fair and impartial is best conducted via open-ended questions that
allow a juror to show in their own words that they can remain impartial, and
in this case, Juror 48 did not show that she could do so.
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must [, however,] be guided not only by the need for an
impartial jury, but also by the principle that no party to any
case has a right to have any particular person on their jury.”
Id. (footnote omitted).
In this case, the circuit court abused its discretion by
denying Carroll’s challenge for cause of Juror 48. As Carroll
exhausted his peremptory challenges, the circuit court’s failure
to excuse Juror 48 precluded Carroll from exercising one of his
peremptory challenges on a different prospective juror.
Carroll’s right to exercise his peremptory challenge was
therefore “denied or impaired,” and his conviction must be
vacated. This case is therefore remanded to the circuit court
for further proceedings consistent with this opinion. See
Kauhi, 86 Hawaiʻi at 200, 948 P.2d at 1041.
B. The ICA did not err in concluding the evidence, when taken
in the light most favorable to the State, was sufficient to
support a prima facie case, i.e., the value of the stolen
or damaged property.
The second issue raised on certiorari is whether the ICA
erred in holding the circuit court did not erroneously deny
Carroll’s motion for judgment of acquittal. Although the
conviction must be vacated due to the circuit court’s abuse of
discretion in denying Carroll’s challenge for cause of Juror 48,
we must also address the second issue, as the motion for
judgment of acquittal was based on sufficiency of evidence and
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the defense did not present any evidence after the motion for
judgment of acquittal made at the close of the State’s case.
State v. Calaycay, 145 Hawaiʻi 186, 195 n.8, 449 P.3d 1184, 1193
n.8 (2019). The prohibition against double jeopardy therefore
requires this court to address Carroll’s insufficiency of
evidence claim. State v. Davis, 133 Hawaiʻi 102, 120, 324 P.3d
912, 930 (2014).
Carroll argues the evidence was insufficient to prove the
necessary valuation thresholds of the various charges (more than
$300 for theft in the second degree of the spear in Count 1,
more than $1,500 for criminal property damage in the second
degree in Count 2 as to the statue, and more than $100.00 for
theft in the third degree in Count 3 for the chain and pole).
Carroll points out that the only evidence presented at trial as
to the value or repair cost of the spear, and the repair costs
of the statue, was testimony provided by the KSAA officer.
Carroll asserts the KSAA officer had no background in art or
sculpture, had not worked as a general contractor since 2000,
and had “guessed” at what material costs would be necessary to
repair damaged portions of the statue. Additionally, Carroll
contends the purchase price of the chain and pole in 2010 or
2011 is insufficient to support a finding as to their 2015
value.
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Carroll’s arguments lack merit. Viewing the evidence in
the light most favorable to the State, there is substantial
evidence to support the convictions on all three counts.19
For purposes of all three charges, HRS § 708-801 provides
that “value means the market value of the property or services
at the time and place of the offense, or the replacement cost if
the market value of the property or services cannot be
determined.” HRS § 708-801(1).
With respect to Count 1, regarding theft of the spear from
the KSAA “of property the value of which exceeds $300,” the KSAA
officer testified the value of the taken portion of the spear
was $2,500. With respect to Count 2, damages to the statue
exceeding $1,500, the KSAA officer testified the repair cost was
$3,500. With respect to Count 3, regarding theft of the chain
and pole from Bayfront Motors “of property the value of which
exceeds $100,” the manager of Bayfront Motors, testified the
purchase price of the chain and pole in 2010 or 2011 was roughly
$135.
This evidence, as further described in Section II.B.4
above, when viewed in the light most favorable to the State,
constitutes sufficient evidence for all counts.
19
Although Counts 1 and 2 were merged for sentencing, we must address
both counts in the event there was insufficient evidence for one. See supra
note 11.
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C. We need not address the sentencing issue.
Based on our rulings on the first two questions on
certiorari, we need not address Carroll’s third question,
whether the ICA erred in holding the circuit court’s sentence
did not improperly penalize or punish Carroll for exercising his
right to trial.20
V. Conclusion
For the reasons stated above, we vacate the ICA’s November
27, 2018 judgment on appeal and the circuit court’s July 26,
2016 judgment of conviction and sentence, and we remand this
20
We note that in Kamanaʻo, we held that “a sentencing court may not
impose an enhanced sentence based on a defendant’s refusal to admit guilty
with respect to an offense the conviction of which he intends to appeal.”
103 Hawaiʻi at 316, 82 P.3d at 402.
We also note that, after the sentencing in this case, in State v.
Sanney, 141 Hawaiʻi 14, 404 P.3d 280 (2017), we indicated:
First, absent unusual circumstances, a trial court should
not provide a sentencing inclination unless plea
negotiations have concluded or did not occur. Second,
before giving a sentencing inclination, a trial court
should consider whether the existing record concerning the
defendant and the defendant's offenses is adequate to make
a reasoned and informed judgment as to the appropriate
penalty. Third, a trial court must follow the established
principle forbidding a trial court from improperly
considering the defendant's exercise of his constitutional
right to a trial as an influential factor in determining
the appropriate sentence. State v. Kamanao, 103 Hawaiʻi 315,
321 n.8, 82 P.3d 401, 407 n.8 (2003) (citations omitted).
In other words, the sentencing inclination must be the same
punishment the court would be prepared to impose if the
defendant were convicted after trial.
141 Hawaiʻi at 21, 404 P.3d at 287 (internal parentheses, ellipsis, and
quotation marks omitted).
36
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
case to the circuit court for further proceedings consistent
with this opinion.
Keith S. Shigetomi, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Haʻaheo M. Kahoʻohalahala,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
37